Mar. 20, 2013

Written by

L. L. Brasier

Free Press Staff Writer

Oakland County Circuit Judge Phyllis McMillen

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An Oakland County Circuit Court judge who was sentencing third-time drunken drivers to work release programs instead of jail wasn’t following the law and will have to re-sentence them, an appellate court ruled.

In an opinion released today, the Michigan Court of Appeals said Judge Phyllis McMillen, Lori erred when she sent six drunken drivers to the Oakland County Work Release program rather than 30 days in jail, as required by Michigan law in third offenses.

“When there is a clear statutory direction regarding sentencing, sentencing is not a matter of the trial court’s discretion,” the three-member panel wrote in a unanimous decision.

McMillen, who has a drug court program designed to treat offenders and addicts, said she began sending defendants to the program because the sheriff’s department billed it as an “in custody” program. The defendants, who wear electronic tethers, were allowed to go to and from work, but returned to the program’s facility at night, where they were tested for drugs and alcohol. The program also helped with jail overcrowding, she said.

“I saw it as a huge carrot,” McMillen said. “So that they could keep their jobs while staying clean.”

Oakland County Prosecutor Jessica Cooper appealed those cases, saying jail time was required by law.

“She has a certain philosophy, and that’s fine,” Cooper said. “She has a wonderful concept of social work and that’s all very laudable, but the crime is driving. Not alcoholism or drinking, but driving while drunk. My job is to keep them off the street.”

This is the second time McMillen was overturned by the Court of Appeals.

The panel rejected six similar drunken driving cases in 2012 after Cooper appealed. McMillen, who said she believes therapy and strict supervision work better to deter drunken drivers, said she is now sentencing third-time offenders to 30 days in jail.

The high court stopped short of saying month-long jail terms are a good idea.

“While we continue to acknowledge the serious problem of overcrowding in our county jails, it is not for this court to determine whether a statute is good public policy,” said the opinion of the panel, made up of judges Mark Cavanaugh, Henry William Saad and Douglas Shapiro.